CITATION: Bidal v. Ontario (Natural Resources), 2015 ONSC 506
COURT FILE NO: CV-14-512454
DATE: 20150407
ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N:
Michael Bidal, Robert Bidal, Gilles Bigras, Marc Bigras, Martin Bigras, Serge Bigras, Guy Brazeau, Rheal Bureau, Natasha Cormier, Mona Denomme, Leonide Ducharme, Claude Dupuis, Clifford Landry, Edmond Landry, Ghyslaine Landry, Kenneth Landry, Luc Landry, Andrew Larabie, Gerald Larabie, Jean Larabie, John G. Larabie, Roland Larabie, Renee Latreille, Jean-Guy Levesque, Alain Plante, Daniel Plante, Francois Plante, Jean-Luc Plante, Rodrique Plante, Eugene Serre, Gerard Serre
- and -
Merv Sarazin, Dan Lynden Sarazin, Thomas Kohoko, Bruce Meness, Joseph Chartrand, Robert Lavalley, Vincent Lavallee, Shawn Johnson
- and -
Gaetan Gauthier, Ruth Gauthier, Sharon Gauthier, Denis Lefebvre, Wilmer Noganosh, Sharon Noganosh
Applicants
- and -
Ministry of Natural Resources
Respondent
Michael Swinwood,
for the Applicants
Brian Wilkie,
for the Respondent
HEARD: December 5, 2014
Application Under S. 140 of the Provincial Offences Act
WHITAKER J.
Nature of the Proceeding
[1] The applicants are the subject of prosecutions for provincial regulatory offences. In response they assert aboriginal title over lands in which the offences were committed.
[2] The applicants seek a writ of prohibition to stay the proceedings in the inferior courts, and directing that the constitutional question be litigated with the representative action styled as Amikwabi et al. v. Attorney General of Canada, Ontario et al.
[3] The applicants seek an order in the nature of mandamus directing the consultation and accommodation be carried out between the Crown and the applicants.
Background
[4] The applicants are all charged with various hunting and fishing offences arising from activity in various parts of the province.
[5] The applicants known as the Sarazin applicants, those being Daniel Sarazin, Thomas Kohoko, Bruce Meness, Joseph Chartrand, Robert Lavalley, Vincent Lavallee and Shawn Johnson, were all charged in Pembroke, Ontario on various dates from 2001 to 2011. The Bidal applicants, of which there were 31, were charged in North Bay, Sudbury and Sturgeon Falls between 2005 and 2011.
[6] The Gauthier applicants were charged in Sudbury in May 2013.
[7] The Gauthier trial was scheduled to begin on September 18, 2014; however, the hearing date was adjourned at the request of the applicants on September 3, 2014, with the service of constitutional question. The Gauthier applicants asserted that they would be bringing an application for a writ of prohibition in the Superior Court.
[8] The Supreme Court of Canada issued a decision in Tsilhqot’in Nation v. British Columbia, 2014 SCC 44, [2014] 2 S.C.R. 257 (“Tsilhqot’in”), on June 26, 2014. On September 19, 2014, counsel for the applicants served a notice of application dated September 13, 2014, returnable on December 5, 2014. The notice of application indicated that the applicants were bringing a representative action asserting Algonquin aboriginal title based on Tsilhqot’in. On the basis of this title claim, the applicants seek an interim order staying the Sarazin, Bidal and Gauthier prosecutions in order that an application dealing with all of these matters is brought to the Superior Court. The applicants also seek an order mandating that the province consult with them and accommodate their concerns about their claim for title.
Courts Jurisdiction
[9] The writ of prohibition and the mandamus order are prerogative remedies within the jurisdiction of the Superior Court. The applicants seek these remedies for the purpose of compelling the Ontario Court of Justice to refrain from attempting to exercise jurisdiction. The writ of prohibition is to compel courts generally entrusted with judicial duties, to keep within the limits of their jurisdiction. See Clifford and O’Sullivan (1921), 2 A.C. 570 (U.K. H.O.L.), and McDonald (Re) (1957), 1957 CanLII 374 (ON SC), 11 D.L.R. (2d) 655.
[10] A writ of prohibition is an extreme measure, a remedy that is sparingly applied: R. v. Hamlink (Re) (1910), 1912 CanLII 705 (ON SC), 26 O.L.R. 381, and Canada Metal Co. Ltd. v. The Queen (1976), 1975 CanLII 531 (ON CA), 8 O.R. 2d 773.
[11] A writ of mandamus is a command issued by the Superior Court directing the fulfillment of some statutory or other public duty to which the applicant has a strict legal right. See: Apotex Inc. v. Canada (Attorney General), 1993 CanLII 3004 (FCA), [1994] 1 F.C. 742 (“Apotex”).
[12] The applicants bring their application pursuant to s. 140(1) of the Provincial Offences Act, R.S.O. 1990, Ch. P.33, which states:
140(1) On application, the Superior Court of Justice may by order grant any relief in respect of matters arising under this Act, that the applicant would be entitled to in an application for an order in the nature of mandamus, prohibition or certiorari.
Positions of the Parties
[13] The applicants argue that the Superior Court exercises exclusive jurisdiction over the provision of declaratory relief and, for this reason, has the authority to declare indigenous title. Inferior courts have no inherent or statutory jurisdiction to declare indigenous title. The applicants rely on R. v. Caron, 2011 SCC 5, [2011] 1 S.C.R. 78, for this proposition. They submit that judicial economy would not be served if they must mount the same constitutional challenge in each separate case. For this submission, the applicants rely on the comment of Perell J. at para. 105 in Kelly v. Canada (Attorney General), 2013 ONSC 1220, [2013] 3 C.N.L.R. 333:
Claims to constitutional aboriginal rights may be adjudicated in the context of a defence to prosecutions for regulatory offences: [citations omitted], but the preferable way to adjudicate claims to aboriginal rights is in civil proceedings where all the proper and necessary parties are before the court.
[14] The respondent Crown argues that the Ontario Court of Justice does have the jurisdiction to consider and determine aboriginal rights issues and, for this reason, a writ of prohibition is unwarranted. As noted earlier, prohibition and mandamus are discretionary remedies which should be awarded in extraordinary circumstances where an inferior court has exceeded its jurisdiction or breached procedural fairness: London (City) v. Young, 64 Admin. L.R. (4th) 149, paras. 14 and 41. This is not the case here.
[15] The Ontario Court of Justice has not, at this point, declined jurisdiction at the request of the applicants. For this reason, there is no basis upon which this Court should exercise its discretion to issue prohibition and mandamus.
[16] In R. v. Sparrow, 1990 CanLII 104 (SCC), [1990] 1 S.C.R. 1075 (“Sparrow”), the Supreme Court set out an analysis for the consideration of aboriginal rights in the context of regulatory prosecutions.
[17] Under Sparrow, unless the Crown is able to prove the elements of an offence, the onus then falls on the defendants to prove that they were exercising their community’s aboriginal or treaty rights, and that the legislation under which they were charged infringes that right.
[18] In this case, the onus switches back to the Crown to justify the infringement - which is a relevant factor at this stage.
[19] In Paul v. British Columbia, 2003 SCC 55, [2003] 2 S.C.R. 585, Bastarache J. held at para. 36 that s. 35 “is not, any more than the Charter, ‘some holy grail which only judicial initiates of the superior courts may touch.’”
[20] Generally speaking, constitutional arguments are better served when seen to be properly considered during a trial, rather than an application. The Superior Court has on a number of occasions refused to determine applications for extraordinary remedies and has instead returned the matters to the Provincial Court for adjudication, for purposes of building a record. In R v. Sarazin, 2010 ONCA 439 (“Sarazin”), the Sarazin defendants in this case appealed a decision refusing their application for a prohibition order staying the prosecutions against them at the Ontario Court of Justice on similar grounds. The Court of Appeal held at para. 4:
It is well established in Canadian law that where an accused person raises constitutional issues, claims of aboriginal right; inter-jurisdictional immunity or rule of law issues by way of defence to a charge, the proper place to advance those defences is in the court having jurisdiction to entertain the charges. If there is any merit to grounds 1 to 4, they are matters properly raised by way of defence to the charges against the appellants in the court having jurisdiction to entertain those charges, namely, the Ontario Court of Justice. If the appellants are dissatisfied with the result in the Ontario Court of Justice, they have recourse to any statutory rights of appeal afforded from conviction.
[21] The Crown opposes the applicants’ claim for title and points out that the applicants are not members of a single aboriginal community, but are instead individuals of diverse origins. For this reason, even if the applicants succeeded in their title claim, the provincial laws still apply to them subject to the Sparrow justification analysis. In the applicants’ submission, the Apotex requirements for an order in the nature of mandamus are fulfilled here. The Crown is under a public legal duty to consult in good faith with any aboriginal groups asserting title to the land about the proposed uses of the land. In the present case, the applicants have asserted indigenous title where the hunt took place, and have styled themselves as a hunting party.
[22] Prior to the establishment of title by court declaration or agreement, the Crown is required to consult in good faith with any aboriginal groups asserting title to the land. If the Crown fails to discharge its duty to consult, various remedies are available including injunctive relief, damages, or an order that consultation or accommodation be carried out. See Tsilhqot’in and Rio Tinto Alcan Inc. v. Carrier Sekani Tribal Council, 2010 SCC 43, [2010] 2 S.C.R. 650.
[23] As noted earlier, the applicants for a mandamus order must establish that they have demanded very specifically the things sought - and that their demands have been refused.
[24] With respect to the issue of the mandamus order, the applicants come from diverse backgrounds which is inconsistent with the assertion of aboriginal title. There has been no demand made to the Ontario Court of Justice. There has been no refusal of any command that might have been made.
[25] The Crown takes the position that this application is malicious and vexatious, is the latest in a series of applications which have led to delays, and the applicants have planned to bring an Algonquin title claim since 2004. The abandoned 2012 class action asserted both a title claim and a breach of the Crown’s duty to consult. In Sarazin, the Ontario Court of Appeal told counsel for the applicants that the Ontario Court of Justice is the proper forum in which to determine the applicants’ aboriginal rights and that prohibition is not available in this case. Notwithstanding this direction, the applicants have brought this application.
[26] In conclusion, the prerogative writs that are being sought by the applicants in this matter are extraordinary remedies and should only be granted in exceptional circumstances. With respect to the first issue, whether the regulatory offences should be stayed pending resolution on the aboriginal claim for title, the Ontario Court of Appeal in R. v. Cook, 2010 ONSC 675, [2010] 2 C.N.L.R. 251, and other authorities, have made it very clear that the appropriate place to bring these applications is the Ontario Court of Justice. Secondly, with respect to the request for a writ of mandamus, there has been no request made of the Ontario Court of Justice to deal with these matters that has been refused by that court. This means that any duty to consult has not yet been engaged and, for that reason, the request fails.
[27] The applications are dismissed.
[28] The parties may make submissions as to costs on no more than two sheets of paper within 14 days of the date of this decision.
WHITAKER J.
DATE: April 7, 2015
CITATION: Bidal v. Ontario (Natural Resources), 2015 ONSC 506
COURT FILE NO: CV-14-512454
DATE: 20150407
ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N:
Bidal et al
- and -
Ministry of Natural Resources
REASONS FOR DECISION
WHITAKER J.
Released: April 7, 2015